Ford v. Dickinson

• Decision Date: 20 December 1919
• Docket Number: No. 20539.,20539.
• Parties: FORD v. DICKINSON et al.
• Court: Missouri Supreme Court

217 S.W. 294

280 Mo. 206

FORD v. DICKINSON et al.

No. 20539.

Supreme Court of Missouri, Division No. 1.

December 20, 1919.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Suit by Patrick H. Ford against Jacob M. Dickinson, receiver of the Chicago, Rock Island & Pacific Railway Company and another. Verdict and judgment for plaintiff against both defendants, from which they appeal. Judgment, reversed, and cause remanded.

Adrian F. Sherman and Thad B. Landon, both of Kansas City, for appellant Ismert-Hincke Milling Co.

Luther Burns, of Topeka, Kan., Sebree & Sebree and Mord M. Bogie, all of Kansas City, for appellant Dickinson.

Boyle & Watson, of Kansas City, for respondent.

RAGLAND, C.

This suit was instituted in the circuit court for Jackson county to recover damages for personal injuries received by the plaintiff, an employd of the defendant Jacob M. Dickinson, receiver of the Chicago, Rock Island & Pacific Railway Company, while engaged in switching cars in the yards of the defendant Ismert-Hincke Milling Company, in Kansas City, Kan.

The defendant Ismert-Hincke Milling Company, hereinafter referred to as the milling company, at and prior to the occurrences presently to be narrated, operated a large flour mill and elevator. Its plant was located in the neighborhood of the terminal and switching yards of the Chicago, Rock Island & Pacific Railway Company, hereinafter called the railway company, but its premises were inclosed. On the north side there was a gate through which the railway company constructed a track from its yards south to the mill and elevator, for the purpose of delivering at the latter point cars loaded with wheat, and receiving there cars loaded with the mill products. Connected (or to be connected) with this track there were three railroad tracks along the west side of the main structure of the mill and elevator. The one next to the mill was known as track 1, the one next west as track 2, and the remaining one as track 3. Over these three tracks there was a steel shed, open at the north and south ends to permit the passage of cars under and through it. The evidence does not particularize as to the dimensions of this shed or the character of its construction, except that it was supported by posts, all of which, possibly, were iron with the exception of one. Photographs introduced show that on the east side its roof was attached to the west wall' of the main structure, and that as a whole it was fashioned somewhat after the manner of a bridge construction. There was a row of posts between tracks 1 and 2 and another between tracks 2 and 3. The posts between 1 and 2 were placed equidistant from the tracks, there being a space of approximately 4 feet between post and rail. The posts between 2 and 3 were 4 feet west of the west rail of track 2. The intervening spaces between these latter posts and the east rail of track 3, between the west rail of track 3 and the west wall of the shed, and between the east rail of track 1 and the west wall of the main mill structure were not shown, but the photographs indicate that these spaces were not more than sufficient for the clearance of cars moving over tracks 1 and 3. Between tracks 1 and 2 there was the opening of a concrete tunnel, into which wheat was unloaded from the cars, and from thence conveyed to the elevator. The posts between these latter tracks, in addition to furnishing support for the roof, were used in connection with and constituted a part of the unloading device. Track 2 was the one generally used for unloading. It extended a short distance south of the shed where it became, in railroad parlance, a dead end. In switching cars loaded with wheat on track 2, in order to make room for them and properly spot them for unloading, it was often necessary to first proceed on through the shed and couple onto empty cars standing near the south end of the track, for the purpose of bringing them out or pushing them on to the end of the track. Track 1 was used in part as a holding track and in part for placing cars to be loaded; track 3 at the time of plaintiff's injury had not been connected with the lead, but it was constructed over scales for the weighing of cars and loads, and was to be used as an additional unloading track. There were three posts between tracks 2 and 3, 6 or 7 feet apart, and, as already indicated, they were in a line. The south and middle ones were 8-inch iron posts, the northernmost was wood, and presented a surface 8 inches wide in approaching it from the north along track 2. This latter post was plainly visible to operators handling cars as soon as they entered the millyard, approximately 350 feet north of the shed.

The mill structures, including the shed and its supports, had been erected by the milling company, and were under its exclusive control and supervision. The tracks had been constructed by the railway company; they were used by the defendant receiver in the service of the milling company only, but it was incumbent upon him to keep them in repair. The crew in charge of the engine that did the switching for the mills in the vicinity of the railway company's yards made two trips daily into the yards of the milling company to deliver and receive the cars incident to the latter's industry.

On March 2, 1916, plaintiff was working for the defendant receiver as a switchman. He was an experienced brakeman, but at that time was on the extra list, having no regular assignment. On that day he was directed to serve as one of the switching crew in charge of the mill engine. The crew consisted of a foreman, an engineer, a fireman, and two switchmen. One of the switchmen was called the engineman. It was his duty to be on or near the engine. The other was called the fieldman, and it was his duty to be on or near the car furthest removed from the engine, and to give the necessary signals to the engineman, who communicated them to the engineer. This crew on the day in question was directed to move a string of seven cars, loaded with wheat, from the railroad yards to the millyard, and place them on the unloading track. All of the members of the crew were familiar with the millyard, the approaches to the mill and elevator and the immediate environs, except plaintiff; he had been in the yards but once before, and then under such circumstances that it was not incumbent upon him to make, and he did not make, any observations as to structures near the tracks. As they entered the millyard with this drag of seven cars, the engine was headed to the south pushing the cars and moving at the rate of from four to six miles an hour. The engineman was standing on the footboard of the engine, between the engine and the first car; the foreman was at the south end of the south car, standing with his right foot on the drawbar and his left on the bottom grabiron on the end of the car on the west side, holding with one hand to the brake staff and looking in the direction the car was moving; and the plaintiff, who was fieldman, was on the ladder on the west side of the south car near the south end, standing on the bottom grabiron and holding to one higher up. Plaintiff looked south, and saw a car standing beyond the mill shed and near the end of the track, he also saw a post on the west side of the track (track 2) and thought there was ample space to clear him while riding on the side of the car, and, having reached that conclusion, gave it no further thought. He then swung partially around the end of the car; that is, he put his right foot around on the same grabiron on which the foreman had his foot, and he put his head around also, and asked the foreman for instructions. The foreman gave him some directions with respect to the car standing near the end of the track; plaintiff then raised his head, and probably changed the position of his body somewhat to make further observation of the car ahead, and, as he did so, a post, which proved to be the south post of the shed, appeared immediately in front of him. He tried to swing around the end of the car, but he was caught about the hips, and rolled between the car and post and severely injured.

Later on the same day the car on which plaintiff was riding when injured was placed on track 2 with the south end opposite the post that struck plaintiff, and certain measurements were made. From the bottom of the car to the roof was 9 feet, the grabirons were 17 inches apart and set within 3 inches of the end of the car; they projected from the side of the car 3 inches. At a point 2 feet above the bottom of the car the space between the side of the car and the post was 14 inches, at a point 2 feet below the roof the space was 10 inches. The spaces between the grabirons and the post at these points was of course 3 inches less. There was a low place under the west rail of track 2 near the south post that caused the top of the car to be nearer the post than the bottom when the car was stationary, and which caused cars when in motion to sway toward the post in passing it.

Plaintiff at the time he was struck, in that he was riding on the side of the car, was in that respect in a position that was a usual and customary one for the proper discharge of his duties where there were no structures so close to the track as to make it hazardous, but members of the crew who were familiar with the mill shed and the locations of the posts never attempted to ride through; they always got off on approaching the shed, walked along, and gave the necessary signals. None of them had ever seen a switchman attempt to ride on the side of a car as it was moving past these posts prior to plaintiff's injury. There was some evidence tending to show a warning in general terms to the employés of the defendant receiver of the dangers arising from the proximity of structures to the tracks in the railway company's terminal yards and in those of the industrial plants served by the defendant receiver, but plaintiff...